Central Administrative Tribunal - Allahabad
Nand Lal Ram vs Textiles on 24 February, 2025
Reserved on 10.02.2025.
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD
BENCH, ALLAHABAD
ALLAHABAD this the 24th day of February 2025.
Present:
HON'BLE MR. JUSTICE OM PRAKASAH -VII, MEMBER (J)
HON'BLE MR. MOHAN PYARE, MEMBER (A)
ORIGINAL APPLICATION NO. 330/01023 of 2022.
1. Nand Lal Ram, aged about 71 years, S/o Late Paltan Ram,
retired from the post of Handicrafts Promotion Officer, (HPO),
Resident of Village and Post Brahmanpur (Leoruwa), District
Jaunpur.
2. Tribuwan Singh, aged about 72 years, S/o Late Phool Ram
Singh, retired from the post of Handcrafts Promotion Officer
(HPO) from Marketing and Service Extension Centre,
Varanasi, resident of Village and Post Raipur, District
Ghazipur.
..........Applicants
Versus
1. Union of India through its Secretary/Ministry of Textile,
Government of India, Department of Handicraft, New Delhi.
2. Development Commissioner (Handicrafts), Ministry of
Textile, Government of India, O/o D.C. (Handicrafts), West
Block No. 7, New Delhi 110066.
3. The Regional Director, O/o D.C. (Handicraft), Central
Regional Office, 7th Floor, Aliganj, Lucknow.
4. Assistant Director (Handicrafts), O/o D.C. (Handicraft),
Marketing & Service Extension Centre, Varanasi.
....Respondents
MANISH KUMAR
SRIVASTAVA
2
Present for the Applicants: Shri Santosh Kumar Kushwaha
Present for the Respondents: Shri M.P Mishra
ORDER
BY HON'BLE MR. JUSTICE OM PRAKASAH -VII, MEMBER (J) By means of present original application, applicants have sought following relief (s):-
(a) Quash the impugned order dated 12.8.2022 and further direct the respondents to grant 3rd financial upgradation to the applicants in pay scale of 15600-39100 PB-3, G.P 7600 w.e.f. 01.08.2008 with all consequential benefits including arrears of gratuity, leave encashment etc. after re-fixation of pay and pension along with 24% penal interest from the date due to the date of actual payment, recoverable from the erring official.
(b) Pass such other order or direction as may be deemed fit and proper and expedient in view of the facts and circumstances of the present case as well as in the interest of justice.
(c) Award cost of the original application to the applicants".
2. Brief facts of this case are that the applicant No. 1 was initially appointed as Junior Field Officer which was subsequently re- designated as Carpet Training Officer in 1978 and applicant No.2 was initially appointed as C.T.O on 30.03.1978. They were declared surplus and thereafter they were redeployed as Handicraft Promotion Officer in the year 2004. Both the applicants were allowed 1st ACP in 1999 in the pay scale of Rs. 6600-10500 and on completion of 24 years of service, they were allowed 2nd ACP in 2002 in the pay scale of Rs. 10000-15200/- and thereafter the said pay scale was upgraded to Rs. 15600-39100 GP 6600 in the 6th CPC. The applicant No.1 and applicant No.2 were at serial No. 16 and 17 respectively in the seniority list. Most of juniors, who were placed between serial No. 18 to 69 have been allowed 3rd financial upgradation in GP Rs.7600/- . Both the applicants were retired from service till date they have not been granted 3rd financial upgradation. They have approached several times to the respondents. Thereafter on the request of the applicants, Assistant Director (Admn. 1) New Delhi wrote a letter on 02.11.2011 MANISH KUMAR SRIVASTAVA 3 to Regional Director, Central Region, Lucknow stating therein that the 3rd MACP of applicant No.1 could not be processed for want of ACRs whereas applicant NO.2 was not found fit for grant of 3rd MACP. Both the applicants have moved representations to the competent authority for grant of 3rd MACP. Due to non-redressal of their grievances, applicants filed original application No. 1076 of 2018 before this Tribunal, which was disposed of with direction to the respondents to decide the claim of 3rd financial upgradation under MACP of the applicants afresh in accordance with rules. In compliance of direction of the Tribunal, respondents have rejected the claim of the applicant by order dated 12.08.2022. Being aggrieved, applicants filed present original application.
3. On notice, respondents have filed counter affidavit wherein it has been submitted that the grant of financial upgradations under ACP/MACP Scheme are personal to the employees. The question of seniority has no role for grant of financial upgradation under ACP/MACP Scheme. Apart from this, as envisaged in the DoP&T OM dated 9.8.1999, for grant of financial upgradations under ACP Scheme up to the grade pay of Rs.6600/-, the bench mark is 'Good' The applicants were granted 1st & 2nd financial upgradations under ACP Scheme as they were having the desired bench mark as envisaged in the DoP&T OM dated 9.8.1999. It is further submitted that the case of applicant for grant of 3rd financial upgradation was placed before the DSC held on 15.6.2012. The DSC did not recommend their case for grant of financial upgradation to the grade pay of Rs.7600/- as matter of applicant No.1 was kept in abeyance for want of ACRs. They have submitted that as per the DoP&T O.M. No.21011/1/2010-Estt.A dated 13th April, 2010, prior to the reporting period 2008-09, only the adverse remarks in the ACR had to be communicated to the concerned officer for representation, if any to be considered by the competent authority. The MACP Scheme is introduced in the year 2009 and at that point of time there was no MANISH KUMAR SRIVASTAVA 4 provision to communicate the ACRs prior to 2008-09. After the introduction of APARs as per DoPT OM dated 14 May 2009, the provision of communication of the entries in the APAR with effect from the reporting period 2008-09 to the concerned has been introduced. As per these guidelines of DoP&T, the applicant No. 2 was given an opportunity vide this office letter dated 28.12.2011 to furnish his comments against the grading in his ACRs. The applicant did not furnish any reply to this department. In compliance of the direction of the Tribunal delivered in OA No. 1076 of 2018, a Review DSC was held on 08.08.2022, which examined the complete ACR dossier of applicant No. 1 (from the year 1977 to 2007) and found the most of the grading in his ACRs were either Average or Good. The officer had only two "Very Good' grading in all his preceding ACRs i.e. from the due date of grant of 3 MACP i.e. 1.9.2008. Similarly, the case of applicant No.2 was also considered by the Review DSC held on 08.08.2022, which examined the complete ACRs dossier (from the year 1978 to 2007) and found the most of the grading Poor/Average or Good. He has only one "Very Good' grading in all his preceding ACRs i.e. from the due date of grant of 3rd MACP i.e. 1.9.2008. Therefore, the review DSC held on 08.08.2022 after careful examination of the service records and ACRs found the above officers unfit for grant of the benefit of 3"
financial upgradation under MACP Scheme.
4. Rejoinder affidavit has also been filed by the applicant in which the applicants have reiterated the facts as stated in the OA and denied the contents of the counter affidavit.
5 We have heard Shri Santosh Kumar Kushwaha, learned counsel for the applicant and Shri M.P. Mishra, learned counsel for the respondents and perused the record.
6. Submission of the learned counsel for the applicants is that the applicant No.1 and 2 were initially appointed as Junior Field Officer MANISH KUMAR SRIVASTAVA 5 and Carpet Training Officer (CTO), respectively, and later redesignated as Handicraft Promotion Officers (HPO) in 2004 after being declared surplus. Both applicants were granted the 1st ACP in 1999 in the pay scale of Rs. 6600-10500 and the 2nd ACP in 2002 in the pay scale of Rs. 10000-15200, which was subsequently upgraded to Rs. 15600-39100 with Grade Pay of Rs. 6600 under the 6th CPC. Learned counsel for the applicants further argued that in the seniority list, the applicants were placed at Serial No. 16 and 17, while several juniors (from Serial No. 18 to 69) were granted the 3rd financial upgradation in GP Rs. 7600. However, both the applicants were denied the 3rd MACP. Despite multiple representations to the respondents, no relief was granted to the applicants. A letter dated 02.11.2011 issued by the Assistant Director (Admn.1), New Delhi, stating therein that the 3rd MACP of Applicant No.1 was pending due to missing of ACRs, and Applicant No.2 was deemed unfit without proper reasoning. He also argued that due to non-redressal of grievances, the applicants filed Original Application No. 1076 of 2018 before this Hon'ble Tribunal, which was disposed of with a direction to the respondents to reconsider their claim afresh in accordance with the rules. Despite the said direction, the respondents, vide order dated 12.08.2022, arbitrarily rejected the claim of the applicants without due consideration of their service record and following of the principle of natural justice. Learned counsel for the applicants next argued that denial of 3rd MACP is unjust, discriminatory, and in violation of Articles 14 and 16 of the Constitution of India, as well as the principles established under the MACP scheme, which aims to provide financial upgradation based on service tenure. Learned counsel for the applicants contended that juniors who were placed below the applicants in the seniority list have been granted the 3rd MACP, thereby creating an unjust anomaly that deprives the applicants of their rightful benefits. He further contended that the applicants, having served diligently and meritoriously, are entitled to the 3rd MACP in GP Rs. 7600, which MANISH KUMAR SRIVASTAVA 6 has been wrongfully denied. Learned counsel for the applicant has relied upon following case laws:-
(i) I. Raju Vs. Chairman & Managing Director, BSNL, New Delhi and others decided on 20.09.2001 in OA No. 1304//2000 by Central Administrative Tribunal (Full Bench Ernakulam);
(ii) Smt. T.K Aryavir Vs. Union of India and others decided on 10.12.2002 in OA No. 2607/2002 by Central Administrative Tribunal, Principal Bench, New Delhi;
(iii) Dev Dutt Vs. Union of India and others reported in (2008) 2 Supreme Court Cases (L&S) 771;
(iv) Abhijit Ghosh Dastidar Vs. Union of India reported in LAWS (SC) 2008 10 146;
(v) Sukhdev Singh Vs. Union of India and others reported in 2013 All.
C.J. 1154;
(vi) Rukhsana Shaheen Khan Vs. Union of India and others reported in LAWS (SC) 2018 8 85;
(vii) R.K. Jibanlata Devi Vs. High Court of Manipur through its Registrar General reported in LAWS(SC) 2023 2 59;
(viii) Mehtab Husain decided on 16.5.2013 in OA No. 253 of 1998 by Central Administrative Tribunal, Allahabad Bench, Allahabad;
(ix) Union of Indi and 4 others Vs. Mehtab Husain decided on 7.1.2014 in Writ 'A' No. 70607 of 2013 by the Hon'ble Allahabad High Court
(x) Kripal Singh Vs. The Secretary, Min. of Housing and Urban Affairs Nirman Bhawan, New Delhi 110011 and others decided on 29.05.2024 in OA No.2421/2019 by Central Administrative Tribunal, Principal Bench, New Delhi".
7. Learned counsel for the respondents referring to the counter affidavit argued that as per the Department of Personnel & Training (DoP&T) OM dated 9.8.1999, the grant of financial upgradations under the ACP/MACP Scheme is personal to the employees, and seniority has no role in its determination. Applicants were granted the 1st and 2nd financial upgradations under the ACP Scheme based MANISH KUMAR SRIVASTAVA 7 on the required benchmark grading, indicating eligibility for career progression under this scheme. Learned counsel for the respondents further argued that for the ACP Scheme up to the grade pay of Rs. 6600/- the benchmark is 'Good' as per the DoP&T OM dated 9.8.1999. Therefore, the applicants received the 1st and 2nd financial upgradations under the ACP Scheme as they met this benchmark. He also argued that the case for the 3rd financial upgradation was placed before the DSC on 15.6.2012, but was not recommended in respect of applicant No.1 due to missing ACRs. According to DoP&T OM dated 13th April, 2010, only adverse remarks in the ACR had to be communicated before the reporting period 2008-09. The MACP Scheme, introduced in 2009, did not initially include a provision to communicate ACRs before 2008-09. The introduction of APARs as per DoPT OM dated 14 May 2009 required communication of APAR entries from the reporting period 2008-09. The applicant No. 2 was given an opportunity to comment on his ACRs, but did not respond. Learned counsel for the applicants also contended that in compliance of direction given by the Tribunal in OA No. 1076/2018, a Review DSC on 08.08.2022 examined the ACRs dossiers of the applicants and found that applicant No. 1 had mostly 'Average' or 'Good' gradings, with only two 'Very Good' gradings since 1.9.2008. Applicant No. 2 had mostly 'Average', or 'Good' gradings, with only one 'Very Good' grading since 1.9.2008. Therefore, the Review DSC found both applicants unfit for the 3rd financial upgradation under the MACP Scheme, thus, prayer was made to dismiss the OA
8. We have considered the rival submissions of learned counsel appearing for both the parties and perused the entire documents on record including the written argument submitted by learned counsel for the applicant.
9. Before analyzing the submissions raised across the bar, it will be useful to quote the law laid down in the case laws relied upon by the applicant.
MANISH KUMAR SRIVASTAVA 8
10. In the case of I. Raju (supra), the Central Administrative Tribunal (Full Bench), Ernakulum answered the referred questions with the observation that "when promotion is based on seniority- cum-fitness, the incumbent is entitled to be reconsidered for promotion when adverse entries in the ACRs have not been communicated to him for the relevant period ignoring the finding of the DPC that the incumbent is 'Not yet fit' on the basis of ACRs". Similar view has been taken by the Principal Bench of this Tribunal in Smt. T.K Aryavir (supra) case. Allowing the OA, direction was given to consider the claim for promotion of the applicant ignoring the ACR for the period which were adverse (i.e. below the benchmark of 'Very Good') which was not communicated to the applicant.
11. In Dev Dutt (supra) case, Hon'ble Supreme Court in para 36, 41, 42, 43 and 44 has held as under:-
"36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders.
41. In our opinion, non-communication of entries in the Annual Confidential Report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.
42. In view of the above, we are of the opinion that both the learned Single Judge as well as the learned Division Bench erred in law. Hence, we set aside MANISH KUMAR SRIVASTAVA 9 the judgment of the Learned Single Judge as well as the impugned judgment of the learned Division Bench.
43. We are informed that the appellant has already retired from service. However, if his representation for upgradation of the `good' entry is allowed, he may benefit in his pension and get some arrears. Hence we direct that the 'good' entry of 1993-94 be communicated to the appellant forthwith and he should be permitted to make a representation against the same praying for its upgradation. If the upgradation is allowed, the appellant should be considered forthwith for promotion as Superintending Engineer retrospectively and if he is promoted he will get the benefit of higher pension and the balance of arrears of pay along with 8% per annum interest.
44. We, therefore, direct that the 'good' entry be communicated to the appellant within a period of two months from the date of receipt of the copy of this judgment. On being communicated, the appellant may make the representation, if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months thereafter. If his entry is upgraded the appellant shall be considered for promotion retrospectively by the Departmental Promotion Committee (DPC) within three months thereafter and if the appellant gets selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment".
12. Similar issue again came up for consideration before the Full Bench of the Hon'ble Supreme Court in Abhijit Ghosh Dastidar (supra) case and in paras 4 and 5, the Court has held as under:-
"4. It is not in dispute that the CAT, Patna Bench passed an order recommending the authority not to rely on the order of caution dated 22.09.1997 and the order of adverse remarks dated 09.06.1998. In view of the said order, one obstacle relating to his promotion goes. Coming to the second aspect, that though the benchmark "very good"
is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non- communication would be arbitrary and as such violative of Article MANISH KUMAR SRIVASTAVA 10 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.
5. Learned counsel appearing for the appellant has pointed out that the officer who was immediately junior in service to the appellant was given promotion on 28.08.2000. Therefore, the appellant also be deemed to have been given promotion from 28.08.2000. Since the appellant had retired from service, we make it clear that he is not entitled to any pay or allowances for the period for which he had not worked in the Higher Administrative Grade Group-A, but his retrospective promotion from 28.08.2000 shall be considered for the benefit of re-fixation of his pension and other retrial benefits as per rules".
13. Again on the reference, Full Bench of Hon'ble Supreme Court in Sukhdeo Singh (supra) case considered the issue and in paras 8 and 10 has held as under:-
"8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR - poor, fair, average, good or very good - must be communicated to him/her within a reasonable period.
9. The decisions of this Court in Satya Narain Shukla vs. Union of India and others10 and K.M. Mishra vs. Central Bank of India and others11 and the other decisions of this Court taking a contrary view are declared to be not laying down a good law.
MANISH KUMAR SRIVASTAVA 11
10. Insofar as the present case is concerned, we are informed that the appellant has already been promoted. In view thereof, nothing more is required to be done. Civil Appeal is disposed of with no order as to costs. However, it will be open to the appellant to make a representation to the concerned authorities for retrospective promotion in view of the legal position stated by us. If such a representation is made by the appellant, the same shall be considered by the concerned authorities appropriately in accordance with law.
14. Again issue came up for consideration before the Hon'ble Supreme Court in Rukhsana Shaheen Khan (supra) case and the Hon'ble Court in paragraph Nos. 2 and 3 has held as under:-
"2. In view of the decision of this Court in Sukhdev Singh Vs. Union of India & Ors. reported in (2013) 9 SCC 566, there cannot be any dispute on this aspect. This Court has settled the law that uncommunicated and adverse ACRs cannot be relied upon in the process.
3. This appeal is, accordingly, allowed and the impugned Judgment is set aside with the following directions :-
(a) The competent authority is directed to ignore the uncommunicated adverse ACRs and take a fresh decision in accordance with law.
(b) The appellant shall be afforded an opportunity of hearing in the process".
15. Again similar issue was considered by the Hon'ble Supreme Court in R.K. Jibanlata Devi (supra) case and in para 7 and 8 has held as under:-
"7. In view of the above and for the reasons stated above, the case of the petitioner for promotion to the post of Assistant Registrar as on 09.04.2021 is required to be considered afresh ignoring the uncommunicated ACRs for the years 2016-17 and 2019-20 and her case is required to be considered afresh taking into consideration the ACRsfor the years 2017-18 & 2018-19 for which the petitioner was having "Very Good" gradings.
8. In view of the above and for the reasons stated above, present petition is allowed. The DPC proceedings dated 09.04.2021 denying the promotion to the petitioner for the post of Assistant Registrar are hereby quashed and set aside. The case of the petitioner for promotion to the post of Assistant MANISH KUMAR SRIVASTAVA 12 Registrar as on 09.04.2021 i.e., the date on which the juniors came to be promoted is directed to be considered afresh ignoring the uncommunicated ACRs for the years 2016-17 and 2019-20 and thereafter the DPC/competent authority to take a fresh decision in accordance with law and taking into consideration the ACRs of remaining years, i.e., 2017-18 and 2018-19. Such an exercise be completed within a period of six weeks from today".
16. This Tribunal in OA No. 253 of 1998 decided on 13.3.2013 relying on the ratio laid down in Abhijit Ghosh Dastidar (supra) allowed the OA directing the respondents to reconsider the claim of the applicant for promotion to the post of Assistant Engineer Grade 'B' in accordance with procedure/methodology approved by the Hon'ble Supreme Court in Abhijit Ghosh Dastidar (supra) case. Applicant challenged the order passed in the aforesaid OA in the Hon'ble High Court through writ 'A' No. 70607 of 2013 which was dismissed on dated 7.1.2014 affirming the order passed by the Tribunal.
17. In Kripal Singh (supra), Principal Bench of this Tribunal allowed the OA directing the respondents to grant 3rd financial upgradation under MACP scheme w.e.f 09.08.2011 observing that below benchmark ACRs have not been communicated to the applicant within the reasonable time, thus, he has not been provided an opportunity to represent against the same but it was communicated later-on when Reporting and Reviewing Officers have retired.
18. In the instant case as is evident from the record that applicant No.1 has retired from service on 31.7.2011 and applicant No.2 on 30.06.2010. Perusal of the impugned order also reveals that respondents themselves are admitting that 3rd financial upgradation was due in respect of the applicants w.e.f. 01.09.2008. In the impugned order dated 12.8.2022, it is mentioned that first Departmental Screening Committee (in short D.S.C.) meeting held on 9.6.2011 whereas in the counter affidavit respondents have MANISH KUMAR SRIVASTAVA 13 pleaded that D.S.C. also held its meeting on 15.6.2012. Impugned order also reveals that in the D.S.C. meeting held on 9.6.2011, matter of the applicant No.1 was kept in abeyance for want of complete ACR but in the review D.S.C. held on 8.8.2022 complete ACR dossier of applicant No. 1 (1977 to 2007) were examined and found that most of the gradings in the ACRs of the applicant No.1 were either 'Average' or 'Good'. It has also been observed in the impugned order that applicant No. 1 was only two 'Very Good' grading in all his preceding ACRs. If the pleadings of the parties in respect of the applicant No.1 is taken into consideration, nothing was mentioned in the counter affidavit regarding communication of below benchmark entries, which have been taken into consideration while rejecting the prayer of the applicant No.1. Perusal of the record also reveals that applicant had earlier approached this Tribunal raising the same grievance through OA No. 1076 of 2018, which was decided on 17.5.2022 disposing of the OA directing the competent authority amongst the respondents to decide the claim of 3rd upgradation under MACP of the applicants afresh in accordance with rules. Impugned order has been passed in compliance of the direction of the Tribunal passed in the aforesaid OA. It is further mentioned in the impugned order that ACRs of the applicant No.2 were also scrutinized by the D.S.C. but applicant No.2 was also not found fit as most of the grading was 'Poor'/'Average'/'Good' whereas for allowing the 3rd upgradation benchmark was 'Very Good'. In the counter affidavit it has been specifically pleaded that applicant No. 2 was informed vide letter dated 28.12.2011 (Annexure CA-1) regarding the ACRS for 2004-2005, 2005-2006 and 2006- 2007 and views and comments on the below benchmark grading awarded by the respective authorities were also called for. It further appears that applicant No.2 did not make any representation in lieu of the letter dated 28.12.2011 whereas a D.S.C. meeting is said to have been held on 15.6.2012 also.
MANISH KUMAR SRIVASTAVA 14
19. Earlier there was no any policy or rule regarding communication of ACR grading to the Government employee. This issue was considered by the Hon'ble Supreme Court in Dev Dutt (supra) case and developing a principles of natural justice to maintain the fairness and transparency in public administration, Hon'ble Court held that all entries whether 'Poor', 'Fair', 'Average', 'Good' or 'Very Good' in the annual confidential report of a public servant whether in civil, judicial, police or any other State service (except the Military) must be communicated to the Government servant within a reasonable period so that he can make representation for its upgradation. Hon'ble Supreme Court in Dev Dutt (supra) case which has been decided on 12.5.2008 also directed the authority concerned to communicate the entries of year 1993-1994 to the appellant forthwith and the employee concerned were directed to make representation on the basis of said communication. Hon'ble Supreme Court made aforesaid direction despite this fact that concerned employee had retired from service. The issue was again considered by the Hon'ble Supreme Court in Sukhdev Singh (supra) on the basis of reference made in regard to the inconsistency in the decision in some of the judgments and ultimately Hon'ble Supreme Court opined that the view taken in Dev Dutt (supra) case is legally sound. In a three Judge Bench decision in Abhijit Ghosh Dastidar (supra) case, the Hon'ble Supreme Court has observed that entries 'Good' if at all granted to the employee concerned, the same should not have been taken into consideration for being considered for promotion to the higher grade as the same has not been communicated to the employee concerned.
20. Now coming to the present case firstly on 09.06.2011 when D.S.C. meeting was held to scrutinize the ACRs of the applicants for granting 3rd upgradation, matter in regard to applicant No.1 was kept in abeyance as ACRs were not available. Nothing is mentioned in the counter affidavit showing this fact that when D.S.C. considered again MANISH KUMAR SRIVASTAVA 15 matter of the applicant No. 1 on 8.8.2022. A.C.Rs which have taken into consideration to negate the claim of the applicant No.1 have been communicated to him. Since A.C.Rs which have been taken into consideration to deprive the applicant No.1 from the benefit of 3rd upgradation in form of A.C.R have never been communicated to the applicant No.1, thus, in our considered view there is violation of principles of natural justice. Hon'ble Supreme Court in Dev Dutt (supra) case decided on 12.05.2008 has clearly held that all the entries whether 'Good' or 'Average' must be communicated to the employee concerned within reasonable time. First D.S.C. in the present matter held on 9.6.2011, respondents ought to have communicated to the adverse entries to the applicant No.1 as direction given in Dev Dutt (supra) was binding on all Government departments irrespective of this fact that department concerned have no specific circulars/rules. It is pertinent to mention here that when applicant approached before this Tribunal through OA No. 11076/2018, which was disposed of directing the respondents to take a fresh decision in accordance with rules. Till passing the impugned order adverse ACRs taken into consideration in respect of applicant No.1 to deny him the benefit of 3rd upgradation of MACP have not been communicated to him but on that basis aforesaid relief was denied. Thus, in view of law laid down by Hon'ble Supreme Court in Abhijit Ghosh Dastidar (supra), Sukhdev Singh (supra), Rukhsana Shaheen Khan (supra) as well as R.K. Jibanlata Devi (supra) cases, prayer of the applicant No.1 to allow him 3rd upgradation from due date ignoring the uncommunciated ACRs is liable to be accepted.
21. In so far as claim of the applicant No.2 is concerned, in the review D.S.C. meeting held on 9.6.2011 claim of the applicant No.2 was not allowed. When applicant No.2 approached before this Tribunal through the aforesaid OA and in light of direction given in the aforesaid OA, fresh consideration vide impugned order was passed and prayer of the applicant No.2 was again rejected. Perusal MANISH KUMAR SRIVASTAVA 16 of the record reveals that on 28.12.2011, below benchmark grading recorded for the year 2004-2005, 2005-2006 and 2006-2007 were communicated to the applicant No.2. No representation for upgrading the aforesaid below benchmark has been made on part of the applicant No.2. Had the applicant No.2 made the representation in lieu of communication dated 28.12.2011, the result would be otherwise. Since no representation has been made, thus, applicant No.2 cannot take benefit with the law laid down in the cases relied upon by the applicants. No relief can be allowed to him as he has been given opportunity to represent against the adverse remark but he has not availed the same, thus, case of applicant No.2 is distinguishable to the case of applicant No.1.
22. Submission of the learned counsel for the applicants is that below benchmark grading in regard to other similarly situated employees have been upgraded and the benefit of 3rd upgradation was allowed to them, then applicants are also entitled for upgradation of below benchmark grading in line with the other employees to whom benefit has been allowed. It may be mentioned here that nowhere in the pleading of the applicants, it is disclosed as to whether upgradation was allowed after representation or without representation. Thus, submission raised on behalf of applicant in this respect cannot be taken into consideration to grant 3rd MACP to the applicant No.2
23. Thus, on close scrutiny of entire facts and circumstances of the case in view of law laid down by the Hon'ble Supreme Court, OA is liable to be partly allowed. Accordingly, OA is partly allowed. Prayer made in respect of the applicant No.1 is allowed and respondents are hereby directed to take a decision ignoring the uncommunicated entries and extend the benefit of 3rd financial upgradation to the applicant No.1 as prayed for from the due date on notional basis revising the PPO. Applicant No.1 will also be entitled MANISH KUMAR SRIVASTAVA 17 for arrear of pension only. Since adverse remarks recorded in the ACRs of the applicant NO.2 have been communicated to him but he did not make any representation, thus, prayer made in respect of the applicant No.2 is hereby refused. The respondents are further directed to complete the exercise in respect of the applicant No.1 within a period of four months extending all the consequential benefits as directed herein above thereof from the date of receipt of a certified copy of the order. No order as to costs. All associated MAs are disposed of.
(Mohan Pyare) (Justice Om Prakash-VII)
Member (A) Member (J)
Manish
MANISH KUMAR
SRIVASTAVA